¶1In the cases of Kimball v. Ballard and Warner v. Supervisors of Outagamie County [19 Wis., 601, 611], we held that where a county treasurer added an excess of five per cent, to the taxes, interest and costs justly chargeable to the land, and sold the property for the entire amount, the sale was void on account of such excess. This ruling disposes of this appeal, *425for it appears from tbe complaint that the treasurer unlawfully added the sum of $1.20, being five per cent, excess, to the original tax, interest and charges, as in the above cases. The plaintiff is entitled to the relief demanded in the complaint upon paying the amount of legal taxes and charges against the land, with seven per cent, interest. Mills v. Johnson, 17 Wis., 598; Kimball v. Ballard, supra.
¶2It is objected that before the plaintiff could maintain his action he must pay or offer to pay the amount justly due. A failure, however, to mate such a tender could only go to the question of costs. The matter of costs in these cases rests very much in the discretion of the court; and it could, as one condition to the relief granted, require the plaintiff to pay such costs as might seem equitable under all the circumstances.
¶3By the Court. — The order overruling the demurrer is affirmed.